H.R. Syiem, Member (T)

1. A consignment of ammonium chloride fertilizer was imported by ship S.S. Green Bay and cleared under Bill of Entry GSI 587 dated 31-1-75 by the Food Corporation of India. Duty was paid, it is said, at 60% basic under I.C.T. Item 28 to expedite clearance. The Food Corporation filed a claim for refund of duty saying the fertilizer was exempted under Notification No. 115/73 but the Assistant Collector, by an order which bears two dates, 2-1-75 and 18-5-76, rejected it saying the notification exempted only diammonium phosphate and ammonium nitro-phosphate and not ammonium chloride. In September 75, the Government of India gave an ad hoc exemption Order No. 404 dated 29-9 75 for the fertilizer imported by S.S. Green Bay. Armed with this, the Corporation filed an appeal to the Appellate Collector of Customs, Bombay, who, however, rejected it because he said the claim under the ad hoc order No. 404 of 29-9-75 was a new claim, the original claim being under Notification No. 115 and was therefore a shift in ground. The shift in ground constituted a fresh claim which would be time-barred. He felt that he was precluded from considering the appeal and so he rejected it vide his order No. S/49-812/76GS dated 29-1-77 (this order bears an inscription that it was despatched on 18-12-76, that means three weeks before it was written).

2. The Food Corporation has now appealed and we are to consider this appeal against the above order of the Appellate Collector. The main argument in the appeal is that there was no shift in the ground as held by the Appellate Collector because the initial claim was lodged with the Assistant Collector on 15-7-75 and the correct Notification under which this consignment was exempted from duty was intimated to him in their letter dated 21-11-75 which was in continuation of their original claim dated 15-7-75, and that both the dates were prior to rejection by the Assistant Collector. The appeal was heard on 17-1-84 during which the learned counsel for the appellants argued that the claim was genuine and ought to have been accepted. The exemption was an ad hoc exemption meant for that particular consignment which arrived by ship 'S.S. Green Bay'. The counsel also argued that the time-limit should be taken as one year since this Tribunal had decided in some other cases that the Food Corporation was equivalent to Government, and therefore the Appellate Collector was mistaken in rejecting the claim for refund by holding the fresh claim on the ad hoc exemption No. 404 as time-barred. He also pleaded that the so-called shift of ground with which the Appellate Collector found fault with is not a valid reason for rejecting the claim because the Tribunal had held in a number of decisions that a shift in ground does not invalidate a claim. [At this point, on enquiry from the Bench, the learned counsel for the department said that he conceded that quoting a new notification would not invalidate a refund claim since such has been the decisions of the Tribunal]. So the ad hoc exemption No. 404 quoted at a later stage by the Food Corporation would not invalidate its claim originally made with the Assistant Collector. The learned counsel for the appellants requested that the case be remanded to the Appellate Collector to decide on the basis of the fresh notification as the goods are covered by ad hoc exemption No. 404 of 29-9-75.

3. The learned counsel for the department rose to say that though he conceded in accordance with the decisions of the Tribunal that a new notification quoted at a later stage would not invalidate a refund claim, he would like to show that the claim itself was invalid and cannot be covered by the ad hoc exemption notification.

First of all, the learned counsel said that the goods arrived and were cleared in January, 1975. The notification exempting the goods was issued in September, 1975. It may be true that the exemption specifically referred to the consignment but the fact remains